Exhibit 1.1
$300,000,000
HUBBELL INCORPORATED
3.625% Senior Notes due 2022
Underwriting Agreement
November 8, 2010
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue, 3rd Floor
New York, New York 10179
Wells Fargo Securities, LLC
301 South College Street, 6th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Hubbell Incorporated, a Connecticut corporation (the “Company”), proposes to issue and sell to
the several Underwriters listed in Schedule I hereto (the “Underwriters”), for whom you are acting
as representatives (the “Representatives”), $300,000,000 principal amount of its 3.625% Senior
Notes due 2022 (the “Securities”). The Securities will be issued pursuant to an Indenture dated as
of September 15, 1995 (the “Base Indenture”), as supplemented by the Second Supplemental Indenture
to be dated as of November 17, 2010 (the “Second Supplemental Indenture” and, the Base Indenture as
supplemented by the Second Supplemental Indenture, the “Indenture”) between the Company and The
Bank of New York Trust Company, N.A. (as successor trustee to JPMorgan Chase Bank, N.A., The Chase
Manhattan Bank and Chemical Bank), as trustee (the “Trustee”).
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1.
Registration Statement
. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-151206),
including a prospectus, relating to the Securities. Such registration statement, as amended at the
time it becomes effective, including the information, if any, deemed pursuant to Rule 430A, 430B or
430C under the Securities Act to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; the
base prospectus filed as part of the Registration Statement, in the form in which it was most
recently filed with the Commission prior to or on the date of this Agreement, is referred to herein
as the “Base Prospectus”; the final prospectus supplement to such prospectus (including the Base
Prospectus) relating to the Securities, in the form filed or to be filed with the Commission
pursuant to Rule 424(b) under the Securities Act, is referred to herein as the “Prospectus”; and
any preliminary prospectus (including any preliminary prospectus supplement) relating to the
Securities in the form filed or to be filed with the Commission pursuant to Rule 424(b) is referred
to herein as a “Preliminary Prospectus”. Any reference in this Agreement to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange
Act”) on or before the effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment” or
“supplement” with respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed by the Company under the
Exchange Act after the effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and under the Exchange Act that are deemed to be
incorporated by reference therein.
At 5:32 p.m. (New York City time) on November 8, 2010, which was immediately prior to the time
when sales of the Securities were first made (the “Time of Sale”), the Company had prepared the
following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus
dated November 8, 2010, and each “free-writing prospectus” (as defined pursuant to Rule 405 under
the Securities Act) listed on Annex C hereto as constituting part of the Time of Sale Information.
2.
Purchase of the Securities by the Underwriters
. (a) The Company agrees to issue
and sell the Securities to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth opposite such Underwriter’s name in
Schedule I hereto at a price equal to 98.499% of the principal amount thereof, plus accrued
interest, if any, from November 17, 2010 to the Closing Date (as defined below). The Company will
not be obligated to deliver any of the Securities except upon payment for all the Securities to be
purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the
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judgment of the Representatives is advisable, and initially to offer the Securities on the terms
set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer
and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may
offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Simpson Thacher
& Bartlett LLP at 10:00 a.m. (New York City time) on November 17, 2010, or at such other time or
place on the same or such other date, not later than the fifth business day thereafter, as the
Company and the Representatives may agree upon in writing. The time and date of such payment and
delivery is referred to herein as the “Closing Date”.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representatives against delivery to the nominee
of The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than 1:00 p.m. (New York City time) on
the business day prior to the Closing Date.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the
transactions contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any
other person. Neither the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3.
Representations and Warranties of the Company
. The Company represents and warrants
to each Underwriter that:
(a) Registration Statement and Prospectus.
The Registration Statement is an “automatic shelf
registration statement” (as defined under Rule 405 of the Securities Act) that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the
3
Company or related to the offering has been initiated or threatened by the Commission; as of
the applicable effective date of the Registration Statement and any amendment thereto, the
Registration Statement complied and will comply in all material respects with the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will
not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided
that the Company makes
no representation and warranty with respect to (i) that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto.
(b)
Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission; and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
provided
that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary Prospectus.
(c)
Time of Sale Information
. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
provided
that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(d)
Issuer Free Writing Prospectuses.
The Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each such communication by the Company
or its agents and representatives (other than a communication referred to in clauses (i) (ii) and
(iii) below), an “Issuer Free Writing Prospectus”) other than (i) any document not
4
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents
listed on Annex C hereto as constituting the Time of Sale Information and (v) any electronic road
show or other written communications, in each case approved in advance by the Representatives.
Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act,
has been or will be (within the time period specified in Rule 433 under the Securities Act) filed
in accordance with the Securities Act (to the extent required thereby) and, when taken together
with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided
that
the Company makes no representation and warranty with respect to any statements or omissions made
in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(e)
Incorporated Documents.
The documents incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus, when such documents were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act and none of
such documents contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale
Information, when such documents become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(f)
Financial Statements.
The financial statements (including the related notes) included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and present fairly in all material respects the financial
position of the Company and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial statements
have been prepared in conformity with U.S. generally accepted accounting principles applied on a
consistent basis throughout the periods covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly in all material respects the
information required to be stated therein; and the other financial information included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus has been derived from the accounting records of the Company and its subsidiaries and
presents fairly in all material respects the information shown thereby.
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(g)
No Material Adverse Change.
Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or
any material adverse change, or any development involving a prospective material adverse change, in
or affecting the business, properties, financial position or results of operations of the Company
and its subsidiaries taken as a whole; and (ii) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any
action, order or decree of any court or arbitrator or governmental or regulatory authority, except
in each case as otherwise disclosed in the Registration Statement, the Time of Sale Information and
the Prospectus.
(h)
Organization and Good Standing.
The Company and each of its “significant subsidiaries”
(as defined in Rule 405 under the Securities Act) have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses requires such
qualification, and have all corporate power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be
so qualified, in good standing or have such power or authority would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the business, properties,
financial position or results of operations of the Company and its subsidiaries taken as a whole or
on the performance by the Company of its obligations under the Securities (a “Material Adverse
Effect”). The Company’s only significant subsidiaries are Burndy Americas Inc., Hubbell Caribe
Limited, Hubbell Incorporated (Delaware), Hubbell Lighting, Inc., Hubbell Power Systems Inc. and
Wepawaug Canada Corp.
(i)
Capitalization.
The Company had an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under the caption
“Capitalization” as of the date specified therein; and all the outstanding shares of capital stock
or other equity interests of each significant subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of any lien, charge, encumbrance, security interest or restriction on
voting or transfer, except as otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(j)
Due Authorization.
The Company has the corporate power and authority to execute and
deliver the Indenture, the Securities and this Agreement (collectively, the “Transaction
Documents”) and to perform its obligations thereunder and hereunder; and all action required to be
taken for the due and proper authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby has been duly and validly
taken.
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(k)
Indenture.
The Indenture has been duly authorized by the Company and has been duly
qualified under the Trust Indenture Act; and the Base Indenture constitutes, and the Second
Supplemental Indenture, when duly executed and delivered in accordance with its terms by each of
the parties thereto, will constitute, a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles relating to enforceability (collectively,
the “Enforceability Exceptions”).
(l)
Securities.
The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m)
Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered
by the Company.
(n)
Descriptions of the Transaction Documents.
Each Transaction Document conforms or will
conform, in all material respects, to the description thereof contained in the Registration
Statement, the Time of Sale Information and the Prospectus.
(o)
No Violation or Default.
Neither the Company nor any of its significant subsidiaries is
(i) in violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority (including, without limitation, the
Employee Retirement Income Security Act of 1974, as amended, the Foreign Corrupt Practices Act of
1977, as amended, the Currency and Foreign Transactions Reporting Act of 1970, as amended, and
other anti-money laundering statutes and regulations, and regulations and rules of the Office of
Foreign Assets Control (OFAC) of the U.S. Department of the Treasury), except, in the case of
clauses (ii) and (iii) above, for any such default or violation that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(p)
No Conflicts.
The execution, delivery and performance by the Company of each of the
Transaction Documents (including the issuance and sale of the Securities) and the consummation of
the transactions contemplated by the Transaction Documents will not (i) conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its significant subsidiaries pursuant to, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to
7
which any of the property or assets of the Company or any of its subsidiaries is subject, (ii)
result in any violation of the provisions of the charter or by-laws or similar organizational
documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority.
(q)
No Consents Required
. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of the Transaction
Documents (including the issuance and sale of the Securities) and the consummation of the
transactions contemplated by the Transaction Documents, except for the registration of the
Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture
Act and such consents, approvals, authorizations, orders and registrations or qualifications as may
be required under applicable state securities laws in connection with the purchase and distribution
of the Securities by the Underwriters.
(r)
Legal Proceedings.
Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries is or may be the subject
that if determined adversely to the Company or any of its subsidiaries, would, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect; no such investigations,
actions, suits or proceedings are, to the knowledge of the Company, threatened or contemplated by
any governmental or regulatory authority or other third party; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement, the Time of Sale Information or the
Prospectus that are not so described in the Registration Statement, the Time of Sale Information
and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that
are required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Time of Sale Information and the Prospectus that are
not so filed as exhibits to the Registration Statement or described in the Registration Statement,
the Time of Sale Information and the Prospectus.
(s)
Independent Accountants.
PricewaterhouseCoopers LLP, which has certified certain
financial statements of the Company and its subsidiaries, is an independent registered public
accounting firm with respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United
States) and as required by the Securities Act.
(t)
Title to Real and Personal Property.
The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the
8
Company and its subsidiaries, (ii) would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or (iii) are described in the Registration Statement,
the Time of Sale Information and the Prospectus.
(u)
Title to Intellectual Property.
The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) (collectively, “Intellectual Property”) necessary for the conduct of their
respective businesses, except where the failure to own, process or have the right to use such
Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and to the Company’s knowledge, the conduct of their respective businesses
will not conflict in any material respect with any such rights of others, and the Company and its
subsidiaries have not received any notice of any claim of infringement or conflict with any such
rights of others that, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(v)
Investment Company Act.
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be required to register as an
“investment company” or an entity “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “Investment Company Act”).
(w)
Taxes.
The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof, and there is
no tax deficiency that has been, or could reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective properties or assets, in each case,
except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus or as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(x)
Licenses and Permits.
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and
except as described in the Registration Statement, the Time of Sale Information and the Prospectus
or except where such revocation or modification would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its
subsidiaries has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course.
9
(y)
No Labor Disputes.
No labor disturbance by, or dispute with, employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened
and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not reasonably be expected to have a Material Adverse Effect.
(z)
Compliance With Environmental Laws.
(i) The Company and its subsidiaries (x) are, and at
all prior times were, in compliance with any and all applicable federal, state, local and foreign
laws, rules, regulations, requirements, decisions and orders relating to the protection of human
health or safety, the environment, natural resources, hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (y) have received and are in
compliance with all permits, licenses, certificates or other authorizations or approvals required
of them under applicable Environmental Laws to conduct their respective businesses; and (z) have
not received notice of any actual or potential liability under or relating to any Environmental
Laws, including for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or
condition that would reasonably be expected to result in any such notice, and (ii) there are no
costs or liabilities associated with Environmental Laws of or relating to the Company or its
subsidiaries, except in the case of each of (i) and (ii) above, (a) as disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus and (b) for any such
failure to comply, or failure to receive required permits, licenses or approvals, or cost or
liability, as would not, individually or in the aggregate, have a Material Adverse Effect.
(aa)
Disclosure Controls
. The Company maintains an effective system of “disclosure controls
and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure. The Company has carried out evaluations of the
effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange
Act.
(bb)
Accounting Controls.
The Company maintains systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the supervision of, their respective principal
executive and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles, including, without limitation, internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with
10
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Except as disclosed in the Registration Statement, the Time of
Sale Information and the Prospectus, there are no material weaknesses in the Company’s internal
controls.
(cc)
Insurance.
Except as would not reasonably be expected to have a Material Adverse Effect,
the Company and its subsidiaries have insurance covering their respective properties, operations,
personnel and businesses, including business interruption insurance, which insurance is in amounts
and insures against such losses and risks as are adequate to protect the Company and its
subsidiaries and their respective businesses; and except as would not reasonably be expected to
have a Material Adverse Effect, neither the Company nor any of its subsidiaries has (i) received
notice from any insurer or agent of such insurer that capital improvements or other expenditures
are required or necessary to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary
to continue its business.
(dd)
No Restrictions on Subsidiaries
. No significant subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is a party
or is subject, from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company
or any other subsidiary of the Company, except for any such restriction that would not reasonably
be expected to adversely affect the Company’s ability to make payments on the Securities when due.
(ee)
No Registration Rights
. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission or the issuance and sale of the Securities.
(ff)
No Stabilization.
The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(gg)
Forward-Looking Statements.
No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
Statement, the Time of Sale Information and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(hh)
Statistical and Market Data
. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
11
(ii)
Sarbanes-Oxley Act
. There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities as such, to comply with any provision
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Sarbanes-Oxley Act”), including Section 402 (related to loans) and Sections 302 and 906
(related to certifications).
(jj)
Status under the Securities Act
. The Company is not an “ineligible issuer” and is a
“well-known seasoned issuer” (in each case as defined under the Securities Act) in each case at the
times specified in the Securities Act in connection with the offering of the Securities.
4.
Further Agreements of the Company
. The Company covenants and agrees with each
Underwriter that:
(a)
Required Filings.
The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus (including the Term Sheet in the form of the term
sheet agreed between the Company and the Representatives on the date hereof) to the extent required
by Rule 433 under the Securities Act; and will file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and
during the Prospectus Delivery Period (as defined below); and the Company will furnish copies of
the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to
the Underwriters in New York City prior to 10:00 a.m. (New York City time), on the business day
next succeeding the date of this Agreement in such quantities as the Representatives may reasonably
request. The Company will pay the registration fees for this offering within the time period
required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the public offering of the Securities as
in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required
by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Securities by any Underwriter or dealer.
(b)
Delivery of Documents.
The Company will deliver, without charge, (i) to the
Representatives, two signed copies of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and consents filed therewith and documents
incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment thereto, in each case including all
exhibits and consents filed therewith and (B) during the Prospectus Delivery Period, as many copies
of the Prospectus (including all amendments and supplements thereto and documents incorporated by
reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably
request.
12
(c)
Amendments or Supplements; Issuer Free Writing Prospectuses.
Before making, preparing,
using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and
before filing any amendment or supplement to the Registration Statement or the Prospectus, the
Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed
Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such
proposed amendment or supplement to which the Representatives reasonably object.
(d)
Notice to the Representatives.
The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (iv) of the issuance by the Commission of
any order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence
of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of
Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free
Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company
of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of
the receipt by the Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use all commercially reasonable efforts to prevent
the issuance of any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any
such qualification of the Securities and, if any such order is issued, will obtain as soon as
possible the withdrawal thereof.
(e)
Time of Sale Information.
If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to Section 4(c) hereof, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so
13
that the statements in the Time of Sale Information as so amended or supplemented will not, in the
light of the circumstances, be misleading or so that the Time of Sale Information will comply with
law.
(f)
Ongoing Compliance
. If during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to Section 4(c) hereof, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law
(g)
Blue Sky Compliance.
The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities;
provided
that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(h)
Earning Statement.
The Company will make generally available to its security holders and
the Representatives as soon as reasonably practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after the “effective date”
(as defined in Rule 158 under the Securities Act) of the Registration Statement.
(i)
Clear Market.
During the period from the date hereof through and including the business
day following the Closing Date, the Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued
or guaranteed by the Company and having a tenor of more than one year.
(j)
Use of Proceeds.
The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the caption “Use of proceeds”.
(k)
No Stabilization.
The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
14
(l)
Record Retention
. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5.
Certain Agreements of the Underwriters
. Each Underwriter hereby represents and
agrees that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex C or
prepared pursuant to Section 3(d) or Section 4(c) hereof (including any electronic road show), or
(iii) any free writing prospectus prepared by such underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use a
term sheet substantially in the form of the term sheet agreed between the Company and the
Representatives on the date hereof without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6.
Conditions of Underwriters’ Obligations.
The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
(a)
Registration Compliance; No Stop Order.
No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representatives.
(b)
Representations, Warranties and Agreements.
The representations and warranties of the
Company contained herein shall be true and correct on the date hereof and on and as of the Closing
Date; the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date; and the Company has
complied with all
15
agreements and satisfied all conditions on its part to be performed or satisfied hereunder prior to
or at the Closing Date.
(c)
No Downgrade.
Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock of or guaranteed by the Company or any
of its subsidiaries by any “nationally recognized statistical rating organization” (as such term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act) and (ii) no such
organization shall have publicly announced that it has under surveillance or review, or has changed
its outlook with respect to, its rating of the Securities or of any other debt securities or
preferred stock of or guaranteed by the Company or any of its subsidiaries (other than an
announcement with positive implications of a possible upgrading).
(d)
No Material Adverse Change.
No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e)
Officers’ Certificate.
The Representatives shall have received on and as of the Closing
Date a certificate of two executive officers of the Company who have specific knowledge of the
Company’s financial matters and are reasonably satisfactory to the Representatives confirming (i)
that each such officer has carefully reviewed the Registration Statement, the Time of Sale
Information and the Prospectus and (ii) to the knowledge of each such officer, to the effect set
forth in Sections 6(a), 6(b), 6(c) and 6(d) hereof.
(f)
Comfort Letters.
On the date of this Agreement and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, containing statements and
information of the type customarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a “cut-off” date no more
than three business days prior to the Closing Date.
(g)
Opinion of Connecticut Counsel for the Company.
Day Pitney LLP, Connecticut counsel for
the Company, shall have furnished to the Representatives, at the request of the Company, their
written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, to the effect set forth in Annex A hereto.
16
(h)
Opinions of Counsel for the Company.
Latham & Watkins LLP, counsel for the Company, shall
have furnished to the Representatives, at the request of the Company, their written opinions and
negative assurance statement, dated the Closing Date and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set forth in Annex B
hereto.
(i)
Opinions of Counsel for the Underwriters.
The Representatives shall have received a
written opinion and negative assurance statement, dated the Closing Date, of Simpson Thacher &
Bartlett LLP, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(j)
No Legal Impediment to Issuance.
No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state, local or
foreign governmental or regulatory authority that would, as of the Closing Date, prevent the
issuance or sale of the Securities; and no injunction or order of any federal, state or foreign
court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of
the Securities.
(k)
Additional Documents.
Prior to or on the Closing Date, the Company shall have furnished
to the Representatives such further customary certificates and documents as the Representatives may
reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters.
The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus, any preliminary prospectus supplement, the Time of
Sale Information, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any “issuer information” (as defined in Rule 433 under the Securities Act) filed or
required to be filed under Rule 433(d), or any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except
17
insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein.
(b)
Indemnification of the Company.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
Section 7(a), but only with respect to any losses, claims, damages or liabilities that arise out
of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Preliminary Prospectus, any preliminary prospectus supplement, the Time
of Sale Information, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any “issuer information” (as defined in Rule 433 under the Securities Act)
filed or required to be filed under Rule 433(d) (it being understood and agreed that the only such
information consists of the following: (i) the names of the Underwriters on the cover pages of the
Preliminary Prospectus dated November 8, 2010 and the Prospectus; (ii) the names of the
Underwriters in the table in the first paragraph under the caption “Underwriting” in the
Preliminary Prospectus dated November 8, 2010 and the Prospectus; and (iii) the fifth, seventh
(third and fourth sentences only), eighth and ninth paragraphs under the caption “Underwriting” in
the Preliminary Prospectus dated November 8, 2010 and the Prospectus).
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either Section 7(a) or 7(b), such person
(the “Indemnified Person”) shall promptly notify the person against whom such indemnification may
be sought (the “Indemnifying Person”) in writing;
provided
that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have under this Section 7
except to the extent that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and
provided
,
further
, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 7. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who
shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person and any others entitled to indemnification pursuant to Section 7
that the Indemnifying Party may designate in such proceeding and shall pay the fees and expenses of
such proceeding and shall pay the fees and expenses of counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i)
18
the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii)
the Indemnifying Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different from or in addition
to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the Indemnified Person
and representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interest between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and
officers and any control persons of such Underwriter shall be designated in writing jointly by J.P.
Morgan Securities LLC and Wells Fargo Securities, LLC and any such separate firm for the Company,
its directors, its officers who signed the Registration Statement and any control persons of the
Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such request and notice
of intention to settle and (ii) the Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement. No Indemnifying
Person shall, without the written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims that are the
subject matter of such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in Sections 7(a) and 7(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand, and the Underwriters, on the other, from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only
19
the relative benefits referred to in clause (i) but also the relative fault of the Company, on the
one hand, and the Underwriters, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company from the sale of the Securities and
the total underwriting discounts and commissions received by the Underwriters in connection
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate offering price of the Securities. The relative fault of the Company, on the one hand,
and the Underwriters, on the other, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e)
Limitation on Liability.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by
pro
rata
allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in Section 7(d). The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in Section 7(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by such Underwriter
with respect to the offering of the Securities exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8.
Effectiveness of Agreement
. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9.
Termination
. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or materially limited
on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities
issued or guaranteed by the Company shall
20
have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium
on commercial banking activities shall have been declared by federal or New York State authorities
or a material disruption in commercial banking or securities settlement and clearance services
shall have occurred; or (iv) there shall have occurred any outbreak or escalation of hostilities or
acts of terrorism involving the United States or declaration of national emergency or war by the
United States or any change in financial markets or any calamity or crisis, either within or
outside the United States, that, in the judgment of the Representatives, is material and adverse
and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
10.
Defaulting Underwriter
. (a) If, on the Closing Date, any Underwriter defaults on
its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule I hereto that, pursuant to this Section 10, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in Section 10(a), the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriter’s
pro
rata
share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in Section 10(a), the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in Section 10(b),
21
then this Agreement shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without
liability on the part of the Company, except that the Company will continue to be liable for the
payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7
hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11.
Payment of Expenses
.
(a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including, without
limitation, the following: (i) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to
the preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Company’s counsel and independent public registered accounting firm;
(v) the fees and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of such jurisdictions
as the Representatives may designate and the preparation, printing and distribution of a Blue Sky
Memorandum, including the related fees and expenses of counsel for the Underwriters (not to exceed
$5,000); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and
expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to
such parties); (viii) all expenses and application fees incurred in connection with any filing
with, and clearance of the offering by, the Financial Industry Regulatory Authority, Inc.; and (ix)
all expenses incurred by the Company in connection with any “road show” presentation to potential
investors.
(b) If this Agreement is terminated by the Underwriters because of any failure or refusal on
the part of the Company to comply with the terms of this Agreement or to fulfill any of the
conditions set forth in Section 6, the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement and the offering contemplated
hereby.
12.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
22
13.
Survival
. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
14.
Certain Defined Terms
. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15.
Miscellaneous
. (a)
Authority of the Representatives.
Any action by the
Underwriters hereunder may be taken by J.P. Morgan Securities LLC and Wells Fargo Securities, LLC
on behalf of the Underwriters, and any such action taken by J.P. Morgan Securities LLC and Wells
Fargo Securities, LLC shall be binding upon the Underwriters.
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o J.P.
Morgan Securities LLC, 383 Madison Avenue, 3
rd
Floor, New York, New York 10179 (fax:
212-834-6081); Attention: Investment Grade Syndicate Desk and c/o Wells Fargo Securities, LLC, 301
South College Street, 6
th
Floor, Charlotte, North Carolina 28202 (fax: 704-383-9165);
Attention: Transaction Management. Notices to the Company shall be given to it at Hubbell
Incorporated, 40 Waterview Drive, Shelton, Connecticut 06484-1000 (fax: 203-882-3743); Attention:
General Counsel.
(c)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
(d)
Counterparts.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f)
Headings.
The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
23
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
|
|
|
|
|
|
|
|
Very truly yours,
HUBBELL INCORPORATED
|
|
|
|
By
|
/s/ James
H. Biggart, Jr.
|
|
|
|
|
Title: Vice President and Treasurer
|
|
|
|
|
|
|
|
|
J.P. MORGAN SECURITIES LLC
|
|
|
|
|
|
|
By
|
|
/s/ Robert Bottamedi
|
|
|
|
|
|
Name: Robert Bottamedi
|
|
|
|
|
|
Title: Vice President
|
|
|
WELLS FARGO SECURITIES, LLC
|
|
|
|
|
|
|
By
|
|
/s/ Carolyn Hurley
|
|
|
|
|
|
Name: Carolyn Hurley
|
|
|
|
|
|
Title: Director
|
|
|
On behalf of the several Underwriters
listed in Schedule I hereto
[Signature Page to Underwriting Agreement]
Schedule I
|
|
|
|
|
|
|
Underwriter
|
|
Principal Amount
|
|
|
J.P. Morgan Securities LLC
|
|
$
|
105,000,000
|
|
|
Wells Fargo Securities, LLC
|
|
|
105,000,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
18,000,000
|
|
|
BNY Mellon Capital Markets, LLC
|
|
|
18,000,000
|
|
|
HSBC Securities (USA) Inc.
|
|
|
18,000,000
|
|
|
Morgan Stanley & Co. Incorporated
|
|
|
18,000,000
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
18,000,000
|
|
|
|
|
|
|
|
Total
|
|
$
|
300,000,000
|
|
|
|
|
|
|
I-1
Annex A
Form of Opinion of Connecticut Counsel for the Company
November 8, 2010
J.P. Morgan Securities LLC
383 Madison Avenue, 3rd Floor
New York, New York 10179
Wells Fargo Securities, LLC
301 South College Street, 6th Floor
Charlotte, North Carolina 28202
And the other several Underwriters listed
in Schedule I to the Underwriting Agreement
Ladies and Gentlemen:
We have acted as Connecticut counsel to Hubbell Incorporated, a Connecticut corporation (the
“
Company
”), as to certain matters of Connecticut law in connection with the issuance and
sale by the Company of $300,000,000 in aggregate principal amount of its 3.625% Senior Notes Due
2022 (the “
Notes
”) pursuant to a registration statement on Form S-3 under the Securities
Act of 1933, as amended (the “
Act
”), filed with the Securities and Exchange Commission (the
“
Commission
”) on May 28, 2008 (File No. 333-151206) (as so filed and amended, the
“
Registration Statement
”), a prospectus, dated May 28, 2008, included in the Registration
Statement at the time it originally became effective (the “
Base Prospectus
”), a preliminary
prospectus supplement, dated November 8, 2010, filed with the Commission pursuant to Rule 424(b)
under the Act (together with the Base Prospectus, the “
Preliminary Prospectus
”) and a
prospectus supplement, dated November 8, 2010, filed with the Commission pursuant to Rule 424(b)
under the Act (together with the Base Prospectus, the “
Prospectus
”) and an Underwriting
Agreement, dated November 8, 2010, among the Company and J.P. Morgan Securities LLC and Wells Fargo
Securities, LLC as representatives of the several Underwriters listed on Schedule I thereto (the
“
Underwriting Agreement
”). This opinion is given pursuant to Section 6(g) of the
Underwriting Agreement. Except as otherwise indicated, capitalized terms used but not defined in
this opinion have the meanings ascribed to them in the Underwriting Agreement.
In connection with this opinion, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of the Registration Statement, the Base Prospectus, the Preliminary
Prospectus, the Prospectus, the Indenture, dated September 15, 1995 (the “
Original
Indenture
”), as supplemented by the Second
A-1
Supplemental Indenture dated as of November 17, 2010 (the “
Second Supplemental
Indenture
,” and together with the Original Indenture, the “
Indenture
”) between the
Company and The Bank of New York Trust Company N.A. (as successor trustee to J.P. Morgan Chase
Bank, N.A., The Chase Manhattan Bank and Chemical Bank) as Trustee, a copy of the Global Note
representing the Notes, the Underwriting Agreement, the Company’s Restated Certificate of
Incorporation, as amended to date (the “
Certificate of Incorporation
”), the Company’s
By-Laws, as amended to date (the “
By-Laws
”), and records of the corporate proceedings of
the Board of Directors of the Company with respect to the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Original Indenture and the offering of the Notes. We have also
examined such other documents, and made such examination of law, as we have deemed necessary in
order to render our opinion. In our examination we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as original documents and the conformity to
original documents of all documents submitted to us as copies.
As to the facts upon which this opinion is based, we have relied upon certificates of public
officials and certificates and written statements (including the representations made in the
Underwriting Agreement) of officers, directors, employees and representatives of the Company. We
have examined and relied upon certificates of the Secretary of the Company with respect to certain
matters related to our opinions expressed herein. With respect to our opinions set forth in
paragraph 2 below regarding the Original Indenture we have relied solely, with your consent, on a
certificate of the Secretary of the Company dated October 3, 1995, and (ii) a certificate of the
Secretary of the Company dated November 17, 2010.
The opinions expressed herein are limited to the laws of the State of Connecticut. Our
opinions in Paragraph 1 below with respect to the legal existence of the Company and Hubbell
Lighting, Inc. are based solely on our examination of certificates of legal existence issued by the
Secretary of the State of the State of Connecticut, each dated November 5, 2010.
Based on and subject to the foregoing, we are of the opinion that:
1. The Company is in legal existence under the laws of the State of Connecticut and has all
corporate power and corporate authority to own or hold its property and conduct its business as
described in the Preliminary Prospectus and the Prospectus. Hubbell Lighting, Inc. is in legal
existence under the laws of the State of Connecticut.
2. The Company has corporate power and authority to execute and deliver each of the
Underwriting Agreement, the Notes and the Second Supplemental Indenture and to perform its
obligations thereunder; all action required to be taken for the due and proper authorization,
execution and delivery of each of the Underwriting Agreement, the Notes and the Second Supplemental
Indenture and the consummation of the transactions contemplated thereby has been duly and validly
taken; and the Underwriting Agreement, the Notes and the Second Supplemental Indenture have been
duly authorized, executed and delivered by the Company. The Company had the corporate power and
authority to
A-2
execute and deliver the Original Indenture, and the Original Indenture was duly authorized,
executed and delivered by the Company.
3. The issuance and sale of the Notes being delivered on the Closing Date and the consummation
of the transactions contemplated in the Underwriting Agreement and the Preliminary Prospectus and
the Prospectus will not result in (i) any violation of the Certificate of Incorporation or By-laws,
or (ii) the violation of any statute, rule or regulation of the State of Connecticut.
4. No consent, approval, authorization, order, registration or qualification of or with any
Connecticut governmental or regulatory authority is required to be obtained or made by the Company
in connection with the execution, delivery and performance of the Underwriting Agreement, the
Second Supplemental Indenture or the Notes (including the issuance and sale of the Notes on the
Closing Date), except for such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities laws in connection with the
purchase and distribution of the Notes by the Underwriters.
Our opinions set forth herein are based on our consideration of only those statutes, rules and
regulations of the State of Connecticut which, in our experience, are normally applicable to or
normally relevant in connection with a transaction of the type contemplated in the Underwriting
Agreement, the Indenture and the Notes when undertaken by general business companies which are not
engaged in regulated business activities.
In addition, we express no opinion concerning or with respect to (i) the laws of any
jurisdiction other than the State of Connecticut, and (ii) any federal or state securities or blue
sky laws.
This opinion is based upon the law as in effect and the facts known to us on the date hereof.
We have not undertaken to advise you of any subsequent changes in the law or of any facts that
hereafter may come to our attention. Except as expressly set forth herein, we have not undertaken
any independent investigation to determine the existence or absence of such facts or matters, and
no inference as to our knowledge should be drawn from the fact that such representation has been
undertaken by us.
This opinion is given solely for your benefit and may not be relied upon by any other person
for any purpose, and may not be circulated, quoted or otherwise referred to (with or without
specific reference to our firm), without our prior written consent in each instance, provided that,
solely in connection with their opinion being rendered to you on the date hereof, Simpson Thacher
& Bartlett LLP may rely on our opinions set forth in paragraphs 1, 2, 3 and 4 of this opinion
subject to the limitations and qualifications set forth herein.
Very truly yours,
Day Pitney LLP
DAS/LTW
A-3
Annex B
Form of Opinion of Counsel for the Company
J.P. Morgan Securities LLC
383 Madison Avenue, 3rd Floor
New York, New York 10179
Wells Fargo Securities, LLC
301 South College Street, 6th Floor
Charlotte, North Carolina 28202
And the other several Underwriters listed
in Schedule I to the Underwriting Agreement
Ladies and Gentlemen:
We have acted as special counsel to Hubbell Incorporated, a Connecticut corporation (the
“Company”), in connection with the sale to you and the several underwriters named in Schedule I to
the Underwriting Agreement referred to below, for whom you are acting as representatives
(collectively, the “Underwriters”), of $300,000,000 in aggregate principal amount of the Company’s
3.625% Senior Notes due 2022 (the “Notes”) pursuant to a registration statement on Form S-3 under
the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange
Commission (the “Commission”) on May 28, 2008 (File No. 333-151206) (as so filed and as amended,
the “Registration Statement”), a prospectus, dated May 28, 2008, included in the Registration
Statement at the time it originally became effective (the “Base Prospectus”), a preliminary
prospectus supplement, dated November 8, 2010, filed with the Commission pursuant to Rule 424(b)
under the Act (together with the Base Prospectus, the “Preliminary Prospectus”), each document that
the Company has identified to us as an “issuer free writing prospectus” (as defined in Rules 433
and 405 under the Act) and that is described on Exhibit A hereto (each a “Specified IFWP”), a
prospectus supplement, dated November 8, 2010, filed with the Commission pursuant to Rule 424(b)
under the Act (the “Prospectus Supplement” and, taken together with the Base Prospectus, the
“Prospectus”), and an underwriting agreement, dated November 8, 2010 (the “Underwriting
Agreement”), between you, as representatives of the several Underwriters, and the Company. The
reports and proxy statements filed by the Company with the Commission and, in each case giving
effect to Rule 412 under the Act, incorporated in the Registration Statement, Preliminary
Prospectus, or Prospectus by reference, are herein called the “Incorporated Documents.” References
herein to the Registration Statement, Preliminary Prospectus, or Prospectus exclude the
Incorporated Documents. The Notes are being issued pursuant to an indenture, dated September 15,
1995 (the “Base Indenture”), between the Company and The Bank of New York Trust Company, N.A. (as
successor to JPMorgan Chase Bank, N.A., The Chase Manhattan Bank and Chemical Bank), as trustee
(the “Trustee”), as supplemented by a supplemental indenture, dated as of November 17, 2010,
between the Company and the Trustee (the “Second Supplemental Indenture” and, together with
B-1
the Base Indenture, the “Indenture”), specifying the terms of the Notes. This letter is being
furnished to you pursuant to Section 6(h) of the Underwriting Agreement.
As such counsel, we have examined such matters of fact and questions of law as we have
considered appropriate for purposes of this letter, except where a specific fact confirmation
procedure is stated to have been performed (in which case we have with your consent performed the
stated procedure). We have examined, among other things, the following:
(a) the Underwriting Agreement, the Registration Statement, the Preliminary Prospectus, the
Specified IFWP, the Prospectus and the Incorporated Documents;
(b) the Base Indenture, the Second Supplemental Indenture and the form of Note (collectively,
the “Transaction Documents”);
(c) the restated certificate of incorporation and by-laws, as amended to date, of the Company
(the “Governing Documents”);
(d) the certificate of incorporation and by-laws, as amended to date, of each of Burndy
Americas Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“Burndy”),
Hubbell Incorporated (Delaware), a Delaware corporation and wholly-owned subsidiary of the Company
(“Hubbell Delaware”), and Hubbell Industrial Controls, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company (“Hubbell Industrial Controls” and, together with Burndy and
Hubbell Delaware, the “Delaware Subsidiaries”);
(e) resolutions of the Board of Directors of the Company, dated June 14, 1995 and October 20,
2010, respectively, pertaining to the Notes; and
(f) the indenture(s), note(s), loan agreement(s), mortgage(s), deed(s) of trust, security
agreement(s) and other written agreement(s) and instrument(s) creating, evidencing or securing
indebtedness of the Company for borrowed money, identified to us by an officer of the Company as
material to the Company and listed in Exhibit B hereto (the “Specified Agreements”).
Except as otherwise stated herein, as to factual matters, we have, with your consent, relied
upon the foregoing and upon oral or written statements and representations of officers and other
representatives of the Company and others, including the representations and warranties of the
Company in the Underwriting Agreement. We have not independently verified such factual matters.
Except as otherwise stated herein, we are opining as to the effect on the subject transaction
only of the federal laws of the United States, the internal laws of the State of New York and, in
numbered paragraph 1 of this letter, the Delaware General Corporation Law (the “DGCL”), and we
express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of
any other jurisdiction or, in the case of Delaware, any other laws, or as to any matters of
municipal law or the laws of any local agencies within any state. Except as otherwise stated
herein, our opinions are based upon our consideration of only those statutes, rules and regulations
which, in our experience, are normally applicable to underwritten public offerings of unsecured
debt
B-2
securities. Various matters concerning the laws of the State of Connecticut are addressed in
the opinion of Day Pitney LLP, which has been separately provided to you. We express no opinion as
to those matters herein, and to the extent elements of such opinion are necessary to the
conclusions expressed herein, we have, with your consent, assumed such matters.
Subject to the foregoing and the other matters set forth herein, as of the date hereof:
1. Each of the Delaware Subsidiaries is a corporation under the DGCL with corporate power and
authority to own its properties and to conduct its business as described in the Registration
Statement, the Preliminary Prospectus and the Prospectus. With your consent, based solely on
certificates from public officials, we confirm that each of the Delaware Subsidiaries is validly
existing and in good standing under the laws of the State of Delaware.
2. The Base Indenture is the legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, and has been qualified under the Trust Indenture
Act of 1939, as amended.
3. When duly authorized, executed and delivered by the Company, the Second Supplemental
Indenture will be the legally valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms.
4. When executed, issued and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by you in accordance with the terms of the Underwriting Agreement, the
Notes will be legally valid and binding obligations of the Company enforceable against the Company
in accordance with their terms.
5. The execution and delivery of the Underwriting Agreement and the Second Supplemental
Indenture, and the issuance and sale of the Notes on the date hereof by the Company to you and the
other Underwriters pursuant to the Underwriting Agreement, do not on the date hereof;
(i) violate the Governing Documents;
(ii) violate any federal or New York statute, rule or regulation applicable to the
Company;
(iii) result in the breach of or a default under any of the Specified Agreements; or
(iv) require any consents, approvals, or authorizations to be obtained by the Company
from, or any registrations, declarations or filings to be made by the Company with, any
governmental authority under any federal or New York statute, rule or regulation applicable
to the Company that have not been obtained or made.
6. The Registration Statement has become effective under the Act. With your consent, based
solely on a telephonic confirmation by a member of the Staff of the Commission on the date hereof,
we confirm that no stop order suspending the
B-3
effectiveness of the Registration Statement has been issued under the Act and no proceedings
therefor have been initiated by the Commission. The Preliminary Prospectus has been filed in
accordance with Rule 424(b) under the Act and the Prospectus has been filed in accordance with Rule
424(b) and Rule 430B under the Act.
7. The Registration Statement at November 8, 2010, including the information deemed to be a
part thereof pursuant to Rule 430B under the Act, the Preliminary Prospectus, as of its date, and
the Prospectus, as of its date, each appeared on their face to be appropriately responsive in all
material respects to the applicable form requirements for registration statements on Form S-3 under
the Act and the rules and regulations of the Commission thereunder; it being understood, however,
that we express no view with respect to Regulation S-T or the financial statements, the financial
schedules or other financial data, included in, incorporated by reference in, or omitted from, the
Registration Statement or the Prospectus. For purposes of this paragraph, we have assumed that the
statements made in the Registration Statement and the Prospectus are correct and complete.
8. Each of the Incorporated Documents, as of its respective filing date, appeared on its face
to be appropriately responsive in all material respects to the applicable requirements for reports
on Forms 10-K, 10-Q, and 8-K, as the case may be, under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder; it being understood, however,
that we express no opinion with respect to Regulation S-T or the financial statements, the
financial schedules or other financial data, included in, incorporated by reference in, or omitted
from such reports. For purposes of this paragraph, we have assumed that the statements made in the
Incorporated Documents are correct and complete.
9. The statements in the Preliminary Prospectus and the Prospectus Supplement under the
caption “Underwriting,” insofar as they purport to describe or summarize certain provisions of the
Underwriting Agreement, are accurate descriptions or summaries in all material respects.
10. The statements in the Preliminary Prospectus and the Prospectus Supplement under the
caption “Description of notes,” insofar as they purport to describe or summarize certain provisions
of the Notes or the Indenture, are accurate summaries or descriptions in all material respects.
11. With your consent, based solely on a certificate of an officer of the Company as to
factual matters, the Company, immediately after giving effect to the sale of the Notes in
accordance with the Underwriting Agreement and the application of the proceeds as described in the
Preliminary Prospectus and the Prospectus Supplement under the caption “Use of proceeds,” will not
be required to be registered as an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
Our opinions are subject to: (i) the effect of bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors; (ii) the effect of general principles of equity, whether considered in a
proceeding in equity or at law (including the possible unavailability of specific performance or
injunctive relief), concepts of materiality,
B-4
reasonableness, good faith and fair dealing, and the discretion of the court before which a
proceeding is brought; (iii) the invalidity under certain circumstances under law or court
decisions of provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to public policy; and
(iv) we express no opinion with respect to (a) consents to, or restrictions upon, governing law
(except for the validity under the laws of the State of New York, but subject to mandatory choice
of law rules and constitutional limitations, of provisions of the Transaction Documents which
expressly choose New York as the governing law for the Transaction Documents), (b) the waiver of
rights or defenses contained in Section 5.15 of the Base Indenture; (c) any provision requiring the
payment of attorneys’ fees, where such payment is contrary to law or public policy; and (d) the
severability, if invalid, of provisions to the foregoing effect. We express no opinion or
confirmation as to federal or state securities laws (except as expressly set forth in numbered
paragraphs 6, 7, 8 and 11 as to federal securities laws), tax laws, antitrust or trade regulation
laws, insolvency or fraudulent transfer laws, antifraud laws, or compliance with fiduciary duty
requirements, pension or employee benefits laws, environmental laws, margin regulations, FINRA
rules, or stock exchange rules (without limiting other laws excluded by customary practice).
With your consent, we have assumed (a) that the Transaction Documents have been duly
authorized, executed and delivered by the parties thereto, (b) that the Transaction Documents
constitute legally valid and binding obligations of the parties thereto other than the Company,
enforceable against each of them in accordance with their respective terms, and (c) that the status
of the Transaction Documents as legally valid and binding obligations of the parties is not
affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of
statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required
consents, approvals or authorizations from, or make required registrations, declarations or filings
with, governmental authorities (provided that we make no such assumption to the extent we have
specifically opined as to such matters with respect to the Company herein).
Insofar as our opinions require interpretation of the Specified Agreements, with your consent,
(i) we have assumed that courts of competent jurisdiction would enforce such agreements in
accordance with their plain meaning, (ii) to the extent that any questions of legality or legal
construction have arisen in connection with our review, we have applied the laws of the State of
New York in resolving such questions, although certain of the Specified Agreements may be governed
by other laws which differ from New York law, (iii) we express no opinion with respect to any
breach or default under a Specified Agreement that would occur only upon the happening of a
contingency, and (iv) we express no opinion with respect to any matters which would require us to
perform a mathematical calculation or make a financial or accounting determination.
This letter is furnished only to you in your capacity as representatives of the several
Underwriters in their capacity as underwriters under the Underwriting Agreement and is solely for
the benefit of the Underwriters in connection with the transactions referenced in the first
paragraph. This letter may not be relied upon by you or the other Underwriters for any other
purpose, or furnished to, assigned to, quoted to, or relied upon by any other person, firm or other
entity for any purpose (including any person, firm or other entity that acquires Notes from you or
the other Underwriters)
B-5
without our prior written consent, which may be granted or withheld in our sole discretion.
Very truly yours,
Latham & Watkins LLP
B-6
Form of Tax Opinion of Counsel for the Company
J.P. Morgan Securities LLC
383 Madison Avenue, 3rd Floor
New York, New York 10179
Wells Fargo Securities, LLC
301 South College Street, 6th Floor
Charlotte, North Carolina 28202
And the other several Underwriters listed
in Schedule I to the Underwriting Agreement
Ladies and Gentlemen:
We have acted as special counsel to Hubbell Incorporated, a Connecticut corporation (the
“Company”), in connection with the sale to you and the several underwriters named in Schedule I to
the Underwriting Agreement referred to below, for whom you are acting as representatives
(collectively, the “Underwriters”), of $300,000,000 in aggregate principal amount of the Company’s
3.625% Senior Notes due 2022 (the “Notes”) pursuant to a registration statement on Form S-3 under
the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange
Commission (the “Commission”) on May 28, 2008 (File No. 333-151206) (as so filed and as amended,
the “Registration Statement”), a prospectus, dated May 28, 2008, included in the Registration
Statement at the time it originally became effective (the “Base Prospectus”), a preliminary
prospectus supplement, dated November 8, 2010, filed with the Commission pursuant to Rule 424(b)
under the Act (together with the Base Prospectus, the “Preliminary Prospectus”), certain documents
that the Company has identified to us as “issuer free writing prospectuses” (as defined in Rules
433 and 405 under the Act and each, a “Specified IFWP”), a prospectus supplement, dated November 8,
2010, filed with the Commission pursuant to Rule 424(b) under the Act (the “Prospectus Supplement”
and, taken together with the Base Prospectus, the “Prospectus”), and an underwriting agreement,
dated November 8, 2010 (the “Underwriting Agreement”), between you, as representatives of the
several Underwriters, and the Company. The reports and proxy statements filed by the Company with
the Commission and, in each case giving effect to Rule 412 under the Act, incorporated in the
Registration Statement, Preliminary Prospectus, or Prospectus by reference, are herein called the
“Incorporated Documents.” References herein to the Registration Statement, Preliminary Prospectus,
or Prospectus exclude the Incorporated Documents. The Notes are being issued pursuant to an
indenture, dated September 15, 1995, between the Company and The Bank of New York Trust Company,
N.A. (as successor to JPMorgan Chase Bank, N.A., The Chase Manhattan Bank and Chemical Bank), as
trustee (the “Trustee”), as supplemented by a supplemental indenture, dated as of November 17,
2010, between the Company and the Trustee, specifying the terms of the Notes. This letter is being
furnished to you pursuant to Section 6(h) of the Underwriting Agreement.
B-7
The facts, as we understand them, and upon which with your permission we rely in rendering the
opinion herein, are set forth in the Registration Statement, the Preliminary Prospectus, the
Prospectus and each Specified IFWP and the Company’s responses to our examinations and inquiries.
Based on such facts and subject to the qualifications, assumptions and limitations set forth
herein and in the Registration Statement, the Preliminary Prospectus, the Prospectus and each
Specified IFWP, we hereby confirm that the statements in the Preliminary Prospectus and the
Prospectus under the caption “Certain United States federal income tax consequences,” insofar as
such statements purport to constitute summaries of United States federal income tax law and
regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects.
No opinion is expressed as to any matter not discussed herein.
We are opining herein as to the effect on the subject transaction only of the federal income
tax laws of the United States, and we express no opinion with respect to the applicability thereto,
or the effect thereon, of other federal laws, the laws of any state or any other jurisdiction or as
to any other matters of municipal law or the laws of any local agencies within any state.
This opinion is rendered to you as of the date of this letter, and we undertake no obligation
to update this opinion subsequent to the date hereof. This opinion is based on current provisions
of the Internal Revenue Code of 1986, as amended, regulations promulgated thereunder and
interpretations thereof by the Internal Revenue Service and the courts having jurisdiction over
such matters. Our opinion is not binding upon the Internal Revenue Service or the courts, and
there can be no assurance that the Internal Revenue Service will not assert a contrary position.
Furthermore, no assurance can be given that future legislation, judicial or administrative changes,
on either a prospective or retroactive basis, would not affect the conclusions stated in this
opinion. Any variation or difference in the facts from those set forth in the Registration
Statement, Preliminary Prospectus, Prospectus or any other documents we reviewed in connection with
the transactions referenced in the first paragraph may affect the conclusions stated herein.
This letter is furnished only to you in your capacity as representatives of the several
Underwriters in their capacity as underwriters under the Underwriting Agreement and is solely for
the benefit of the Underwriters in connection with the transactions referenced in the first
paragraph of this letter. This letter may not be relied upon by you or the other Underwriters for
any other purpose, or furnished to, assigned to, quoted to, or relied upon by any other person,
firm or other entity for any purpose (including any person, firm or other entity that acquires
Notes from you or the other Underwriters) without our prior written consent, which may be granted
or withheld in our sole discretion.
Very truly yours,
Latham & Watkins LLP
B-8
Form of Negative Assurance Letter of Counsel for the Company
J.P. Morgan Securities LLC
383 Madison Avenue, 3rd Floor
New York, New York 10179
Wells Fargo Securities, LLC
301 South College Street, 6th Floor
Charlotte, North Carolina 28202
And the other several Underwriters listed
in Schedule I to the Underwriting Agreement
Ladies and Gentlemen:
We have acted as special counsel to Hubbell Incorporated, a Connecticut corporation (the
“Company”), in connection with the sale to you and the several underwriters named in Schedule I to
the Underwriting Agreement referred to below, for whom you are acting as representatives
(collectively, the “Underwriters”), of $300,000,000 in aggregate principal amount of the Company’s
3.625% Senior Notes due 2022 (the “Notes”) pursuant to a registration statement on Form S-3 under
the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange
Commission (the “Commission”) on May 28, 2008 (File No. 333-151206) (as so filed and as amended,
the “Registration Statement”), a prospectus, dated May 28, 2008, included in the Registration
Statement at the time it originally became effective (the “Base Prospectus”), a preliminary
prospectus supplement, dated November 8, 2010, filed with the Commission pursuant to Rule 424(b)
under the Act (together with the Base Prospectus, the “Preliminary Prospectus”), each document that
the Company has identified to us as an “issuer free writing prospectus” (as defined in Rules 433
and 405 under the Act) and that is described on Exhibit A hereto (each a “Specified IFWP”), a
prospectus supplement, dated November 8, 2010, filed with the Commission pursuant to Rule 424(b)
under the Act (the “Prospectus Supplement” and, taken together with the Base Prospectus, the
“Prospectus”), and an underwriting agreement, dated November 8, 2010 (the “Underwriting
Agreement”), between you, as representatives of the several Underwriters, and the Company. The
reports and proxy statements filed by the Company with the Commission and, in each case giving
effect to Rule 412 under the Act, incorporated in the Registration Statement, Preliminary
Prospectus, or Prospectus by reference, are herein called the “Incorporated Documents.” References
herein to the Registration Statement, Preliminary Prospectus, or Prospectus exclude the
Incorporated Documents. This letter is being furnished to you pursuant to Section 6(h) of the
Underwriting Agreement.
The primary purpose of our professional engagement was not to establish or confirm factual
matters or financial or quantitative information. Therefore, we are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the statements contained
in, or incorporated by reference in, the Registration
B-9
Statement, the Preliminary Prospectus, any Specified IFWP, the Prospectus, or the Incorporated
Documents (except to the extent expressly set forth in the numbered paragraphs 9 and 10 of our
letter to you of even date and in our letter to you of even date with respect to certain tax
matters), and have not made an independent check or verification thereof (except as aforesaid).
However, in the course of acting as special counsel to the Company in connection with the
preparation by the Company of the Registration Statement, the Preliminary Prospectus, each
Specified IFWP, and the Prospectus, we have reviewed the Registration Statement, the Preliminary
Prospectus, each Specified IFWP, the Prospectus, and the Incorporated Documents, and participated
in conferences and telephone conversations with officers and other representatives of the Company,
your representatives and counsel, and the independent public accountants for the Company, during
which conferences and conversations the contents of the Registration Statement, the Preliminary
Prospectus, each Specified IFWP, and the Prospectus (and portions of the Incorporated Documents)
and related matters were discussed. We also reviewed and relied upon certain corporate records and
documents, letters from counsel and accountants, and oral and written statements of officers and
other representatives of the Company and others as to the existence and consequence of certain
factual and other matters.
Based on our participation, review and reliance as described above, we advise you that no
facts came to our attention that caused us to believe that:
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the Registration Statement, at the time it became effective on November 8, 2010,
including the information deemed to be a part of the Registration Statement pursuant to
Rule 430B under the Act (together with the Incorporated Documents at that time), contained
an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
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•
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the Preliminary Prospectus, as of 5:32 p.m. (New York City time) on November 8, 2010
(together with the Incorporated Documents at that date and the Specified IFWPs), contained
an untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; or
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•
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the Prospectus, as of its date or as of the date hereof (together with the Incorporated
Documents at those dates), contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
|
it being understood that we express no belief with respect to the financial statements, the
financial schedules or other financial data included or incorporated by reference in, or omitted
from, the Registration Statement, the Preliminary Prospectus, the Specified IFWPs, the Prospectus,
the Incorporated Documents, or the Form T-1.
This letter is furnished only to you in your capacity as representatives of the several
Underwriters in their capacity as underwriters under the Underwriting Agreement and is solely for
the benefit of the Underwriters in connection with the
B-10
transactions referenced in the first paragraph. This letter may not be relied upon by you or
the other Underwriters for any other purpose, or furnished to, assigned to, quoted to, or relied
upon by any other person, firm or other entity for any purpose (including any person, firm or other
entity that acquires Notes from you or the other Underwriters) without our prior written consent,
which may be granted or withheld in our sole discretion.
Very truly yours,
Latham & Watkins LLP
B-11
Annex C
Time of Sale Information
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Pricing Term Sheet, dated November 8, 2010, substantially in the form agreed between the
Company and the Representatives as filed or to be filed pursuant to Rule 433 under the
Securities Act.
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C-1
Exhibit 4.2
HUBBELL INCORPORATED,
as Issuer
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of November 17, 2010
To
INDENTURE
Dated as of September 15, 1995
3.625% Senior Notes due 2022
SECOND SUPPLEMENTAL INDENTURE (as hereinafter defined, the “
Second Supplemental Indenture
”),
dated as of November 17, 2010, between HUBBELL INCORPORATED, a Connecticut corporation (the
“
Company
”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as
Trustee (the “
Trustee
”).
WHEREAS, the Company and Chemical Bank (as predecessor to The Chase Manhattan Bank and
JPMorgan Chase Bank, N.A.) (the “
Original Trustee
”) executed and delivered an Indenture, dated as
of September 15, 1995 (the “
Base Indenture
” and, together with the Second Supplemental Indenture,
the “
Indenture
”), to provide for the issuance by the Company, from time to time, of senior
unsecured debt securities, consisting of debentures, notes, bonds and/or other unsecured evidences
of indebtedness, to be issued in one or more series, as provided in the Indenture;
WHEREAS, subsequent to the date of the Base Indenture, The Bank of New York Mellon Trust
Company, N.A. acquired the trustee business of the Original Trustee and succeeded the Original
Trustee as the Trustee under the Indenture;
WHEREAS, pursuant to Resolutions of the Board of Directors of the Company, dated October 20,
2010, the Company authorized the creation and issuance of a series of its debt securities under the
Indenture, designated as the “3.625% Senior Notes due 2022” in the initial aggregate principal
amount of $300,000,000 (the “
Notes
”);
WHEREAS, Section 11.01 of the Base Indenture provides that, without prior notice to or the
consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more supplemental indentures to establish the
forms or terms of Debt Securities as permitted by Sections 2.01 and 3.01 of the Base Indenture;
WHEREAS, the Company desires to establish the forms and terms of the Notes in accordance with
Sections 2.01 and 3.01 of the Base Indenture;
WHEREAS, the Company has determined that this Second Supplemental Indenture is authorized and
permitted by Section 11.01 of the Base Indenture and has delivered to the Trustee an Opinion of
Counsel to that effect and an Officers’ Certificate pursuant to Section 1.02 of the Base Indenture
to the effect that all conditions precedent provided for in the Base Indenture to the Trustee’s
execution and delivery of this Second Supplemental Indenture have been complied with;
WHEREAS, the Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of the Indenture and shall, to the extent applicable, be governed by such
provisions; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid agreement of
the Company, in accordance with its terms, and to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this Second Supplemental Indenture has been duly
authorized in all respects.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
2
ARTICLE 1
DEFINITIONS
Section 1.1
Definition of Terms
.
For all purposes of this Second Supplemental Indenture,
except as otherwise expressly provided or unless the context requires otherwise:
(a) a term defined in the Base Indenture and not otherwise defined herein has the
same meaning when used in this Second Supplemental Indenture; and
(b) the following terms have the meanings given to them in this Section 1.1(b) and
shall have the meaning set forth below for purposes of this Second Supplemental Indenture and the
Base Indenture as it relates to the Notes created hereby:
“
Additional Notes
” shall have the meaning set forth in Section 6.1 hereof.
“
Business Day
” means, with respect to the Notes, any calendar day that is not a Saturday,
Sunday or legal holiday in New York, New York and on which commercial banks are open for business
in New York, New York.
“
Change of Control
” means the occurrence of any of the following: (a) the direct or indirect
sale, lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
Company’s assets and its subsidiaries’ assets, taken as a whole, to any person, other than the
Company or one of its subsidiaries;
provided, however,
that none of the circumstances in this
clause (a) will be a Change of Control if the persons that beneficially own the Company’s Voting
Stock immediately prior to the transaction own, directly or indirectly, shares with a majority of
the total voting power of all outstanding voting securities of the surviving or transferee person
that are entitled to vote generally in the election of that person’s board of directors, managers
or trustees immediately after the transaction; (b) the consummation of any transaction (including,
without limitation, any merger or consolidation), the result of which is that any person becomes
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 50% of the Company’s outstanding Voting Stock or other Voting Stock into
which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by
voting power rather than number of shares;
provided, however,
that a person shall not be deemed
beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such person’s affiliates until such
tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such
beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a
proxy or consent solicitation made pursuant to the applicable rules and regulations under the
Exchange Act and (2) is not also then reportable on Schedule 13D (or any successor schedule) under
the Exchange Act; (c) the Company consolidates with, or merges with or into, any person, or any
person consolidates with, or merges with or into, the Company, in any such event pursuant to a
transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such
other person is converted into or exchanged for cash, securities or other property, other than any
such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to
such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock
of the surviving person or any direct or indirect parent company of the surviving person
immediately after giving effect to such transaction; (d) the first day on which a majority of the
members of the Company’s Board of Directors are not Continuing Directors; or (e) the adoption of a
plan relating to the liquidation or dissolution of the Company. Notwithstanding the foregoing, a
transaction shall not be deemed to involve a Change of Control if (a) the Company becomes a direct
or indirect wholly-owned subsidiary of a holding company and (b)(1) the direct or indirect holders
of the Voting Stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s Voting
3
Stock immediately prior to that transaction or (2) immediately following that transaction no
person (other than a holding company satisfying the requirements of this sentence) is the
beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding
company. As used in this definition, the term “person” has the meaning specified in Section
13(d)(3) of the Exchange Act.
“Change of Control Offer”
shall have the meaning set forth in Section 3.2 hereof.
“Change of Control Payment”
shall have the meaning set forth in Section 3.2 hereof.
“Change of Control Payment Date”
shall have the meaning set forth in Section 3.2 hereof.
“
Change of Control Triggering Event
” means the occurrence of both a Change of Control and a
Rating Event.
“
Comparable Treasury Issue
” means the United States Treasury security selected by the
Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of
the Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
“
Comparable Treasury Price
” means, with respect to any Redemption Date, (a) the average of
four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, (b) if the Company obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations,
or (c) if only one Reference Treasury Dealer Quotation is received, such Reference Treasury Dealer
Quotation.
“
Continuing Directors
” means, as of any date of determination, any member of the Company’s
Board of Directors who (a) was a member of such Board of Directors on the date the Notes were
issued or (b) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Company’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“
Corporation
” includes any corporation, association, company (including any joint stock
company and limited liability company) and business trust.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, or any successor Act.
“
Fitch
” means Fitch Inc., and its successors.
“
Interest Payment Date
” shall have the meaning set forth in Section 2.3(a) hereof.
“
Interest Period
” shall have the meaning set forth in Section 2.3(b) hereof.
“
Investment Grade
” means a rating equal to or higher than BBB- (or the equivalent) by Fitch,
Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the equivalent
Investment Grade credit rating from any replacement Rating Agency or Rating Agencies selected by
the Company.
“
Moody’s
” means Moody’s Investors Service, Inc., and its successors.
4
“
Optional Redemption Price
” shall have the meaning set forth in Section 3.1(a) hereof.
“
Person
” shall have the meaning set forth in the Base Indenture and includes a “person” or
“group” as these terms are used in Section 13(d)(3) of the Exchange Act.
“
Quotation Agent
” means a Reference Treasury Dealer appointed by the Company.
“
Rating Agencies
” means (a) each of Fitch, Moody’s and S&P and (b) if any of Fitch, Moody’s or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Company’s control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a Board Resolution) as a replacement agency for Fitch, Moody’s or S&P, or all of them,
as the case may be.
“
Rating Event
” means a decrease in the ratings of the Notes below Investment Grade by at least
two of the three Rating Agencies on any date from the date that is 60 days prior to the date of the
first public notice of an arrangement that could result in a Change of Control until the end of the
60-day period following the consummation of such Change of Control (which period shall be extended
so long as the rating of the Notes is under publicly announced consideration for possible downgrade
by any of the Rating Agencies).
“
Redemption Date
” means, with respect to any redemption of the Notes, the date fixed for such
redemption pursuant to the Indenture and the Notes.
“
Reference Treasury Dealer
” means (a) each of J.P. Morgan Securities LLC and a primary U.S.
Government securities dealer in New York City (a “
Primary Treasury Dealer
”) selected by Wells Fargo
Securities, LLC (or their respective affiliates that are Primary Treasury Dealers) and their
successors;
provided, however,
that if either of the foregoing ceases to be a Primary Treasury
Dealer, the Company shall substitute another Primary Treasury Dealer and (b) two other Primary
Treasury Dealers selected by the Company in good faith.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third Business Day preceding such Redemption Date.
“
Regular Record Date
” means, with respect to any Interest Payment Date, the May 1 and November
1 (whether or not a Business Day) preceding the relevant Interest Payment Date.
“
S&P
” means, Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.
“
Stated Maturity Date
” shall have the meaning set forth in Section 2.2 hereof.
“
Treasury Rate
” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.
“
Voting Stock
” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such person.
5
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1
Designation and Principal Amount
.
The Notes may be issued from time to time upon
written order of the Company for the authentication and delivery of the Notes pursuant to Sections
3.01 and 3.03 of the Base Indenture. There is hereby authorized a series of Debt Securities
designated as the “3.625% Senior Notes due 2022,” initially limited in aggregate principal amount
to $300,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other
Notes pursuant to Sections 3.03, 3.04, 3.05, 3.06, 11.06 or 13.07 of the Base Indenture).
Section 2.2
Stated Maturity
.
The date upon which the Notes due 2022 shall become due and
payable at final maturity, together with any accrued and unpaid interest, is November 15, 2022 (the
“
Stated Maturity Date
”).
Section 2.3
Interest
.
(a) The Notes shall bear interest at the rate of 3.625% per annum. The date from
which interest shall accrue on the Notes shall be November 17, 2010. Interest on the Notes shall
be payable semi-annually in arrears on May 15 and November 15 of each year (each, an “
Interest
Payment Date
”), beginning on May 15, 2011 to the Persons in whose name the Notes are registered at
the close of business on the Regular Record Date for such Interest Payment Date, except as provided
in Section 2.3(d) hereof.
(b) Interest payable on any Interest Payment Date, the Stated Maturity Date or, if
applicable, any Redemption Date or otherwise at Maturity shall be the amount of interest accrued
from, and including, the immediately preceding Interest Payment Date in respect of which interest
has been paid or duly provided for (or from and including the original issue date of November 17,
2010, if no interest has been paid or duly provided for with respect to the Notes) to, but
excluding, such Interest Payment Date, Stated Maturity Date or, if applicable, Redemption Date or
other Maturity, as the case may be (each, an “
Interest Period
”).
(c) The amount of interest payable for any full semi-annual Interest Period shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest
payable for any period shorter than a full semi-annual Interest Period for which interest is
computed shall be computed on the basis of a 30-day month and, for any period less than a month, on
the basis of the actual number of days elapsed per 30-day month. In the event that any scheduled
Interest Payment Date for the Notes falls on a day that is not a Business Day, then payment of
interest payable on such Interest Payment Date shall be postponed to the next succeeding day which
is a Business Day (and no interest on such payment shall accrue for the period from and after such
scheduled Interest Payment Date).
(d) In the event that the Stated Maturity Date, any Redemption Date or other
Maturity falls on a day that is not a Business Day, then the related payments of principal,
premium, if any, and interest may be made on the next succeeding day that is a Business Day (and no
additional interest shall accumulate on the amount payable for the period from and after the Stated
Maturity Date or any Redemption Date or other Maturity). Interest due on the Stated Maturity Date
or any Redemption Date or other Maturity (in each case, whether or not an Interest Payment Date) on
any of the Notes shall be paid to the Person to whom principal of the Notes is payable.
Section 2.4
Place of Payment and Appointment
.
Principal of, premium, if any, and interest on
the Notes shall be payable, the transfer of the Notes shall be registrable, and the Notes shall be
exchangeable for Notes of a like aggregate principal amount, at the office or agency of the Company
maintained for such purpose in New York, New York, which shall initially be the corporate trust
office of
6
the Trustee;
provided, however,
that payment of interest may be made at the option of the
Company by check mailed to the Person entitled thereto at such address as shall appear in the
Security Register or by wire transfer to an account appropriately designated by the Person entitled
to payment; and
provided, further,
the Company shall pay principal of, premium, if any, and
interest on, the Notes in global form registered in the name of or held by The Depository Trust
Company or such other U.S. Depositary as any officer of the Company may from time to time
designate, or its respective nominee, by wire in immediately available funds to such U.S.
Depositary or its nominee, as the case may be, as the Registered Holder of such Notes in global
form.
The Security Registrar and Paying Agent for the Notes shall initially be the Trustee.
Section 2.5
Defeasance
.
The Company may elect, at its option at any time, pursuant to Section
15.01 of the Base Indenture, to have Section 15.02 of the Base Indenture apply to the Notes or any
principal amount thereof.
Section 2.6
Denominations
.
The Notes shall be issuable only in minimum denominations of
$2,000 and integral multiples of $1,000 in excess thereof.
Section 2.7
Global Notes
.
The Notes shall be issued initially in the form of a permanent
Global Note in registered form deposited with The Depository Trust Company or such other U.S.
Depositary as any officer of the Company may from time to time designate. Unless and until each
such Global Note is exchanged for Notes in certificated form, the Global Note may be transferred,
in whole but not in part, and any payments on the Notes shall be made only to the U.S. Depositary
or a nominee of the U.S. Depositary, or to a successor U.S. Depositary selected or approved by the
Company or to a nominee of such successor U.S. Depositary.
Section 2.8
Form of the Notes
.
The form of the Notes and the Trustee’s Certificate of
Authentication to be endorsed thereon shall be substantially in the form attached as Exhibit A
hereto, with such changes therein as the officers of the Company executing the Notes (by manual or
facsimile signature) may approve, such approval to be conclusively evidenced by their execution
thereof.
Section 2.9
No Sinking Fund
.
The Notes shall not be entitled to the benefit of any sinking
fund.
ARTICLE 3
REDEMPTION OF THE NOTES
Section 3.1
Optional Redemption by Company
.
(a) Subject to the terms of the Indenture, the Notes shall be redeemable in whole or
in part, at the Company’s option, at any time and from time to time at a redemption price (the
“
Optional Redemption Price
”) equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 20
basis points, plus accrued interest thereon to the Redemption Date.
7
(b) Notice of any redemption shall be mailed not less than 30 days and not more than
60 days prior to the Redemption Date to each Holder of Notes to be redeemed.
(c) Unless the Company defaults in payment of the Optional Redemption Price, from
and after the Redemption Date, interest shall cease to accrue on the Notes or portions thereof
called for redemption. If less than all of the Notes are to be redeemed, the Notes to be redeemed
shall be selected by the Trustee by a method that the Trustee deems to be fair and appropriate.
Section 3.2
Change of Control Triggering Event
.
(a) If a Change of Control Triggering Event occurs, unless the Company has exercised
its option to redeem the Notes as described in Section 3.1 hereof, the Company shall be required to
make an offer (a “
Change of Control Offer
”) to each Holder of the Notes to repurchase all or any
part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes
on the terms set forth in the Notes. In a Change of Control Offer, the Company shall be required to
offer payment in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus
accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the repurchase
date (a “
Change of Control Payment
”). Within 30 days following any Change of Control Triggering
Event or, at the Company’s option, prior to any Change of Control, but after public announcement of
the transaction that constitutes or may constitute the Change of Control, a notice shall be mailed
to Holders of the Notes describing the transaction that constitutes or may constitute the Change of
Control Triggering Event and offering to repurchase such Notes on the repurchase date specified in
the applicable notice, which date shall be no earlier than 30 days and no later than 60 days from
the date on which such notice is mailed (a “
Change of Control Payment Date
”).
(b) The notice shall, if mailed prior to the date of consummation of the Change of
Control, state that the Change of Control Offer is conditioned on the Change of Control Triggering
Event occurring prior to or on the applicable Change of Control Payment Date specified in the
notice.
(c) On any applicable Change of Control Payment Date, the Company shall, to the
extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the
applicable Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered pursuant to the applicable
Change of Control Offer; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being repurchased.
(d) The Company shall not be required to make a Change of Control Offer upon the
occurrence of a Change of Control Triggering Event if a third party makes such an offer in the
manner, at the times and otherwise in compliance with the requirements for an offer made by the
Company, and the third party repurchases all Notes properly tendered and not withdrawn under its
offer. In addition, the Company shall not repurchase any Notes if there has occurred and is
continuing on the Change of Control Payment Date an Event of Default under the Indenture, other
than a default in the payment of the Change of Control Payment upon a Change of Control Triggering
Event.
8
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws and regulations are applicable
in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event.
To the extent that the provisions of any such securities laws or regulations conflict with the
Change of Control Offer provisions of the Notes, the Company shall comply with those securities
laws and regulations and shall not be deemed to have breached the Company’s obligations under the
Change of Control Offer provisions of the Notes by virtue of any such conflict.
ARTICLE 4
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 4.1
Consolidation, Merger, Conveyance, Transfer or Lease
.
The provisions of Sections
10.01 and 10.02 of the Base Indenture shall apply with respect to the Notes, except that, for
purposes of the Notes, references to “Corporation” and “corporation” in such Sections 10.01 and
10.02 of the Base Indenture shall be deemed to have been replaced by the definition of
“Corporation” as set forth in Section 1.1 of this First Supplemental Indenture.
ARTICLE 5
EVENTS OF DEFAULT
Section 5.1
Events of Default
.
The following “Events of Default” shall apply with respect to
the Notes (notwithstanding Section 5.01 of the Base Indenture, which shall be deemed amended and
restated, and superseded, by the following):
“
Event of Default
” means, with respect to the Notes, any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law, pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon the Notes when it becomes due
and payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (and premium, if any, on) the
Notes at Maturity;
(3) [Reserved];
(4) default in the performance, or breach, of any covenant or warranty of the
Company in the Indenture (other than any covenant or warranty a default in whose
performance or whose breach is dealt with elsewhere in this Section 5.1 or any
covenant or warranty which has been included in the Indenture solely for the benefit
of Debt Securities of series other than the Notes), and continuance of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the outstanding Notes, a written
notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” under the Indenture;
9
(5) the entry of a decree or order for relief in respect of the Company by a
court having jurisdiction in the premises in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or
State bankruptcy, insolvency or other similar law, or a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable federal or state law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar official)
of the Company or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days;
(6) the commencement by the Company of a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or
State bankruptcy, insolvency or other similar law, or the consent by it to the entry
of an order for relief in an involuntary case under any such law or to the
appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of its creditors, or
the admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance of any
such action; or
(7) [Reserved].
ARTICLE 6
ADDITIONAL NOTES
Section 6.1
Additional Notes.
Subject to the terms and conditions contained herein, the
Company may from time to time, without the consent of the existing Holders of the Notes, create and
issue additional notes (the “
Additional Notes
”) ranking equally and ratably with the Notes in all
respects (except for the payment of interest accruing prior to the issue date of such Additional
Notes or except, in some cases, for the first payment of interest following the issue date of such
Additional Notes). Any such Additional Notes, at the Company’s determination and in accordance
with provisions of the Indenture, shall be consolidated with and form a single series with the
previously outstanding Notes for all purposes of the Indenture. The aggregate principal amount of
any Additional Notes shall be unlimited.
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.1
Supplemental Indentures Without Consent of Holders
.
The following provisions
relating to supplemental indentures shall apply with respect to the Notes (notwithstanding Section
11.01 of the Base Indenture, which shall be deemed amended and restated, and superseded, by the
following):
Without prior notice to or the consent of any Holders of the Notes, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental to the
Indenture, in form reasonably satisfactory to the Trustee, for any of the following
purposes:
10
(1) to evidence the succession of another Corporation to the rights of the
Company, and the assumption by such successor of the covenants and obligations of
the Company, under the Indenture and the Notes;
(2) to add to the covenants of the Company for the benefit of all of the
Holders of the Notes appertaining thereto, or to surrender any right or power
conferred by the Indenture upon the Company;
(3) to add any additional Events of Default;
(4) to add or change any of the provisions of the Indenture to such extent as
will be necessary to permit or facilitate the issuance of the Notes in bearer form,
registrable or not registrable, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit the issuance of the
Notes in uncertificated form,
provided
that any such action will not adversely
affect the interests of the Holders of the Notes in any material respect;
(5) to change or eliminate any of the provisions of the Indenture,
provided
that any such change or elimination will become effective only when there are no
Notes created prior to the execution of such supplemental indenture which are
entitled to the benefit of such provision and as to which such supplemental
indenture would apply;
(6) to secure the Notes or to provide that any of the Company’s obligations
under the Notes or the Indenture will be guaranteed;
(7) to supplement any of the provisions of the Indenture to such extent as will
be necessary to permit or facilitate the defeasance and discharge of the Notes
pursuant to Article Fifteen of the Base Indenture,
provided
that any such action
will not adversely affect the interests of the Holders of the Notes in any material
respect;
(8) to establish the form or terms of additional series of Debt Securities as
permitted by the Indenture;
(9) to evidence and provide for the acceptance of appointment under the
Indenture by a successor trustee with respect to the Notes and to add to or change
any of the provisions of the Indenture as will be necessary to provide for or
facilitate the administration of the trusts under the Indenture by more than one
trustee, pursuant to the requirements of the Indenture;
(10) to cure any ambiguity, to correct or supplement any provision of the
Indenture which may be defective or inconsistent with any other provision of the
Indenture, to eliminate any conflict between the terms of the Indenture and the
Notes and the Trust Indenture Act, or to make any other provisions with respect to
matters or questions arising under the Indenture which will not be inconsistent with
any provision of Indenture;
provided
such other provisions will not adversely affect
the interests of the Holders of the Notes in any material respect; or
(11) to change or modify any of the provisions of the Indenture;
provided
that
any such changes or modifications will not adversely affect the interests of the
Holders of the Notes in any material respect.
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Section 7.2
Supplemental Indentures With Consent of Holders
.
The following provisions relating
to supplemental indentures shall apply with respect to the Notes (notwithstanding Section 11.02 of
the Base Indenture, which shall be deemed amended and restated, and superseded, by the following):
With the written consent of the Holders of not less than a majority in
principal amount of the Notes voting separately, by act of such Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental to the Indenture
for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or modifying in any manner the rights of the
Holders of the Notes under the Indenture;
provided, however,
that no such
supplemental indenture will, without the consent of each Holder:
(1) change the Stated Maturity of the principal of, or installment of interest,
if any, on, the Notes, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption thereof, or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on the Notes
is denominated or payable, or adversely affect the right of repayment or repurchase,
if any, at the option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions, if any, for
the Notes, or impair the right to institute suit for the enforcement of any payment
on or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or limit the obligation of the Company to maintain a paying
agency outside the United States for payment on Bearer Securities as provided in the
Indenture;
(2) reduce the percentage in principal amount of the Notes, the consent of
whose Holders is required for any supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain provisions of the
Indenture or certain defaults or Events of Default under the Indenture and their
consequences provided for in the Indenture; or
(3) modify certain provisions of the Indenture requiring the approval of a
specified percentage of the Holders of the Notes, except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of each Holder of the Notes;
provided,
however,
that this clause (3) will not be deemed to require the consent of any
Holder with respect to changes in the references to “the Trustee” and concomitant
changes in the Indenture, or the deletion of this proviso, in accordance with the
requirements of the Indenture.
It will not be necessary for any act of Holders under the preceding paragraph
to approve the particular form of any proposed supplemental indenture, but it will
be sufficient if such act will approve the substance thereof.
Section 7.3
Effect of Supplemental Indentures
.
A supplemental indenture which changes or
eliminates any covenant or other provision of the Indenture with respect to the Notes or which
modifies the rights of the Holders of the Notes with respect to such covenant or other provision,
will be deemed not to affect the rights under the Indenture of Holders of other series of Debt
Securities. A supplemental indenture which changes or eliminates any covenant or other provision of
the Indenture with respect to Debt Securities of any other series or which modifies the rights of
the Holders of Debt Securities of any other series with respect to such covenant or other
provision, will be deemed not to affect the rights under the Indenture of Holders of the Notes.
12
ARTICLE 8
MISCELLANEOUS
Section 8.1
Confirmation of Base Indenture
.
The Base Indenture, as supplemented by this
Second Supplemental Indenture, is in all respects ratified and confirmed, and this Second
Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent
herein and therein provided.
Section 8.2
Responsibility of Recitals, Etc
.
The Trustee assumes no responsibility for the
correctness of the recitals. The Trustee makes no representations as to the validity or the
sufficiency of this Second Supplemental Indenture or of the Notes. The Trustee shall not be
accountable for the use or application by the Company of the Notes or the proceeds thereof.
Section 8.3
Concerning the Trustee
.
The Trustee does not assume any duties, responsibility or
liabilities by reason of this Second Supplemental Indenture other than as set forth in the
Indenture and, in carrying out its responsibilities hereunder, the Trustee shall have all of the
rights, powers, privileges, protections and immunities which it possesses under the Indenture.
Section 8.4
Governing Law
.
This Second Supplemental Indenture and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
Section 8.5
Severability
.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then, to the extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second Supplemental Indenture, or of
the Notes, but this Second Supplemental Indenture and the Notes shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 8.6
Counterparts
.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
Section 8.7
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act which is required to be a part of and govern
this Second Supplemental Indenture, the provision of the Trust Indenture Act shall control. If any
provision of this Second Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply
to this Second Supplemental Indenture, as so modified or excluded, as the case may be.
Section 8.8
Effect of Headings
.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
Section 8.9
USA Patriot Act.
The parties hereto acknowledge that, in accordance
with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (as amended, modified or supplemented from time to time, the “USA Patriot Act”), the
Trustee, like all financial institutions, is required to obtain, verify, and record information
that identifies each person or legal entity that opens an account. The parties to this Agreement
agree that they will provide the Trustee with such information as the Trustee may request in
order for the Trustee to satisfy the requirements of the USA Patriot Act.
[Remainder of page intentionally left blank]
13
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, as of the day and year first written above.
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HUBBELL INCORPORATED
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By:
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/s/ James H. Biggart, Jr.
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Name:
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James H. Biggart, Jr.
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Title:
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Vice President and Treasurer
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Attest:
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/s/ Richard W. Davies
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Richard W. Davies
Vice President, General Counsel and Secretary
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ Lawrence M. Kusch
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Name:
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Lawrence M. Kusch
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Title:
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Vice President
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[
Signature Page to Second Supplemental Indenture
]
EXHIBIT A
[
To be included in Global Notes
— THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A U.S. DEPOSITARY OR A NOMINEE
THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER
OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH U.S.
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
HUBBELL INCORPORATED
3.625% Senior Notes due 2022
CUSIP: 443510AF9
ISIN: US443510AF99
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No. R-1
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U.S. $300,000,000
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Hubbell Incorporated, a corporation duly organized and existing under the laws of Connecticut
(herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered
assigns, the principal sum of THREE HUNDRED MILLION DOLLARS ($300,000,000) on November 15, 2022 and
to pay interest thereon from November 17, 2010 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on May 15 and November 15 in each
year, beginning on May 15, 2011, at the rate of 3.625% per annum, until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date shall, as provided in such Indenture, be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the close of business on
the Regular Record Date for such interest, which shall be, as the case may be, the May 1 or
November 1 (whether or not a Business Day) next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Notes not more than 30 days and not less than 10 days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note shall be made at
the office or agency of the Company maintained for that purpose in New York, New York, in such coin
or currency of the United States of America as at the time of payment is legal tender for payment
of public and private debts; and
provided, however
, that at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account maintained by the Person
entitled thereto as specified
A-1
in the Security Register; and
provided, further
, the Company shall pay principal of (and
premium, if any) and interest on this Note in global form registered in the name of or held by The
Depository Trust Company or such other U.S. Depositary as any officer of the Company may from time
to time designate, or its respective nominee, by wire in immediately available funds to such U.S.
Depositary or its nominee, as the case may be, as the Registered Holder of this Note in global
form.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated: November 17, 2010
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HUBBELL INCORPORATED
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By:
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Name:
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James H. Biggart, Jr.
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Title:
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Vice President and Treasurer
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Attest:
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Richard W. Davies
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Vice President, General Counsel and Secretary
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Trustee’s Certificate of Authentication
This Note is one of the Debt Securities of a series referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
[
Signature Page to Global Note
]
[Reverse of Note]
This Note is one of a duly authorized series of Debt Securities of the Company (herein called
the “Note” or the “Notes,” as the case may be), issued and to be issued in one or more series under
an Indenture, dated as of September 15, 1995 (herein called the “Base Indenture”), between the
Company and Chemical Bank (as predecessor trustee to The Chase Manhattan Bank, The Bank of New York
Trust Company, N.A., JPMorgan Chase Bank, N.A. and The Bank of New York Mellon Trust Company,
N.A.), as amended and supplemented by the Second Supplemental Indenture, dated as of November 17,
2010 (the “Second Supplemental Indenture” and, together with the Base Indenture, the “Indenture”),
between the Company and The Bank of New York Mellon Trust Company, N.A., a national banking
association, as trustee (the “Trustee”). Reference is hereby made to the Indenture for a statement
of the respective rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes, and of the terms upon which the Notes are, and are to be
authenticated and delivered.
The Notes shall be redeemable in whole or in part, at the Company’s option, at any time and
from time to time at a redemption price (the “Optional Redemption Price”) equal to the greater of:
(1) 100% of the principal amount of such Notes Outstanding to be redeemed; and (2) the sum of the
present values of the remaining scheduled payments of principal and interest thereon discounted to
the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate, plus 20 basis points, plus accrued interest thereon to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date shall
be payable to the Holders of such Notes, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture. Notice of any such redemption shall be mailed not less than 30 days and not more
than 60 days prior to the Redemption Date to each Holder of the Notes to be redeemed.
For purposes of the redemption provisions, the following terms are applicable:
“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of
the Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
“Comparable Treasury Price” means, with respect to any Redemption Date (a) the average of four
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, (b) if the Company obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations
or (c) if only one Reference Treasury Dealer Quotation is received, such Reference Treasury Dealer
Quotation.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means (a) each of J.P. Morgan Securities LLC and a primary U.S.
Government securities dealer in New York City (a “Primary Treasury Dealer”) selected by Wells Fargo
Securities, LLC (or their respective affiliates that are Primary Treasury Dealers) and their
successors;
provided
,
however
, that if either of the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute another Primary Treasury Dealer and (b) two other Primary
Treasury Dealers selected by the Company in good faith.
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“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.
In the event of redemption of the Notes in part only, a new Note or Notes for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to
redeem the Notes as described above, the Company shall be required to make an offer (the “Change of
Control Offer”) to each Holder of the Notes to repurchase all or any part (equal to $2,000 or an
integral multiple of $1,000 in excess thereof) of that Holder’s Notes on the terms set forth
herein. In a Change of Control Offer, the Company shall be required to offer payment in cash equal
to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest,
if any, on the Note repurchased to, but not including, the repurchase date (the “Change of Control
Payment”). Within 30 days following any Change of Control Triggering Event or, at the Company’s
option, prior to any Change of Control, but after public announcement of the transaction that
constitutes or may constitute the Change of Control, a notice shall be mailed to Holders of Notes
describing the transaction that constitutes or may constitute the Change of Control Triggering
Event and offering to repurchase the Notes on the repurchase date specified in the applicable
notice, which date shall be no earlier than 30 days and no later than 60 days from the date on
which such notice is mailed (the “Change of Control Payment Date”) pursuant to the procedures
described in such notice and in conformity with the Indenture.
The notice shall, if mailed prior to the date of the consummation of the Change of Control,
state that the Change of Control Offer is conditioned on the Change of Control Triggering Event
occurring prior to or on the applicable Change of Control Payment Date specified in the notice.
On any applicable Change of Control Payment Date, the Company shall, to the extent lawful: (a)
accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of
Control Offer; (b) deposit with the Paying Agent an amount equal to the Change of Control Payment
in respect of all Notes or portions of Notes properly tendered pursuant to the applicable Change of
Control Offer; and (c) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions
of Notes being repurchased.
The Company shall not be required to make the Change of Control Offer upon the Change of
Control Triggering Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company, and the third party
repurchases all Notes properly tendered and not withdrawn under its offer. In addition, the Company
shall not repurchase any Notes if there has occurred and is continuing on the Change of Control
Payment Date an Event of Default under the Indenture, other than a default in the payment of the
Change of Control Payment upon a Change of Control Triggering Event.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Triggering Event. To the
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extent that the provisions of any securities laws or regulations conflict with the Change of
Control Offer provisions of the Notes, the Company shall comply with those securities laws and
regulations and shall not be deemed to have breached the Company’s obligations under the Change of
Control Offer provisions of the Notes by virtue of any such conflict.
For purposes of the Change of Control Offer provisions, the following terms are applicable:
“Change of Control” means the occurrence of any of the following: (a) the direct or indirect
sale, lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
Company’s assets and its subsidiaries’ assets, taken as a whole, to any person, other than the
Company or one of its subsidiaries;
provided, however,
that none of the circumstances in this
clause (a) will be a Change of Control if the persons that beneficially own the Company’s Voting
Stock immediately prior to the transaction own, directly or indirectly, shares with a majority of
the total voting power of all outstanding voting securities of the surviving or transferee person
that are entitled to vote generally in the election of that person’s board of directors, managers
or trustees immediately after the transaction; (b) the consummation of any transaction (including,
without limitation, any merger or consolidation), the result of which is that any person becomes
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 50% of the Company’s outstanding Voting Stock or other Voting Stock into
which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by
voting power rather than number of shares;
provided, however,
that a person shall not be deemed
beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such person’s affiliates until such
tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such
beneficial ownership (i) arises solely as a result of a revocable proxy delivered in response to a
proxy or consent solicitation made pursuant to the applicable rules and regulations under the
Exchange Act and (ii) is not also then reportable on Schedule 13D (or any successor schedule) under
the Exchange Act; (c) the Company consolidates with, or merges with or into, any person, or any
person consolidates with, or merges with or into, the Company, in any such event pursuant to a
transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such
other person is converted into or exchanged for cash, securities or other property, other than any
such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to
such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock
of the surviving person or any direct or indirect parent company of the surviving person
immediately after giving effect to such transaction; (d) the first day on which a majority of the
members of the Company’s Board of Directors are not Continuing Directors; or (e) the adoption of a
plan relating to the liquidation or dissolution of the Company. Notwithstanding the foregoing, a
transaction shall not be deemed to involve a Change of Control if (a) the Company becomes a direct
or indirect wholly-owned subsidiary of a holding company and (b)(1) the direct or indirect holders
of the Voting Stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s Voting Stock immediately prior to that
transaction or (2) immediately following that transaction no person (other than a holding company
satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of
more than 50% of the Voting Stock of such holding company. As used in this definition, the term
“person,” has the meaning specified in Section 13(d)(3) of the Exchange Act.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a
Rating Event with respect to the Notes.
“Continuing Directors” means, as of any date of determination, any member of the Company’s
Board of Directors who (a) was a member of such Board of Directors on the date the Notes were
issued or (b) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such
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nomination, election or appointment (either by a specific vote or by approval of the Company’s
proxy statement in which such member was named as a nominee for election as a director, without
objection to such nomination).
“Fitch” means Fitch Inc., and its successors.
“Investment Grade” means a rating equal to or higher than BBB- (or the equivalent) by
Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the equivalent
Investment Grade credit rating from any replacement Rating Agency or Rating Agencies selected by
the Company.
“Moody’s” means Moody’s Investors Service Inc. and its successors.
“Person” has the meaning set forth in the Base Indenture and includes a “person” or “group” as
these terms are used in Section 13(d)(3) of the Exchange Act.
“Rating Agencies” means (a) each of Fitch, Moody’s and S&P and (b) if any of Fitch, Moody’s or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Company’s control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a Board Resolution) as a replacement agency for Fitch, Moody’s or S&P, or all of them,
as the case may be.
“Rating Event” means a decrease in the ratings of the Notes below Investment Grade by at least
two of the three Rating Agencies on any date from the date that is 60 days prior to the date of the
first public notice of an arrangement that could result in a Change of Control until the end of the
60-day period following the consummation of such Change of Control (which period shall be extended
so long as the rating of the Notes is under publicly announced consideration for possible downgrade
by any of the Rating Agencies).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such person.
The Notes shall not be entitled to the benefit of any sinking fund.
The Indenture contains provisions for defeasance and discharge at any time of (1) the entire
indebtedness of the Notes or (ii) certain restrictive covenants and Events of Default with respect
to the Notes, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal
of the Notes may be declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Notes to be affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Notes at the time Outstanding to be
affected. The Indenture also contains provisions permitting the Holders of specified percentages
in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to
waive compliance by the
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Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any Notes issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have
previously given written notice to the Trustee of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the time Outstanding
shall have made written request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity against the costs, expenses and
liabilities which may be incurred in compliance with such request, and the Trustee shall not have
received from the Holders of a majority in principal amount of the Notes at the time Outstanding a
direction inconsistent with such written request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holders of the Notes for the enforcement of
any payment of principal hereof or any premium or interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on the Notes at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of the Notes is registrable in the Security Register, upon surrender of the Notes for
registration of transfer at the office or agency of the Company in any place where the principal of
and any premium and interest on the Notes are payable, duly endorsed by or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes and of like tenor, of authorized denominations and for the same aggregate principal amount,
shall be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum denominations of
U.S. $2,000 and integral multiple of U.S. $1,000 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company or the Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of the Notes for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name the Notes are
registered as the owner hereof for all purposes, whether or not the Notes be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used, but not defined, in the Notes shall have the meanings assigned to
them in the Indenture.
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